July 18, 2001 OFFICE OF THE HEARING EXAMINER KING COUNTY, WASHINGTON 850 Union Bank of California Building 900 Fourth Avenue Seattle, Washington 98164 Telephone (206) 296-4660 Facsimile (206) 296-1654 FIRST1 DECISION ON CODE ENFORCEMENT APPEAL SUBJECT: Department of Development and Environmental Services File No. E0100105 MICHAEL RICHARDS Code Enforcement Appeal Appellant: Michael Richards, represented by Jon G. Schneidler, Attorney at Law 4100 Wells Fargo Center, 999 Third Avenue Seattle, WA 98104 Telephone: (206) 624-9400 Facsimile: (206) 464-9559 King County: Department of Development and Environmental Services, Site Development Services Division, Code Enforcement Section, represented by Chris Tiffany 900 Oakesdale Avenue SW Renton, WA 98055-1219 Telephone: (206) 296-7049 Facsimile: (206) 296-7055 EXAMINER PROCEEDINGS: Hearing Opened: June 7, 2001 Hearing Closed: July 9, 2001 Participants at the public hearing and the exhibits offered and entered are listed in the attached minutes. A verbatim recording of the hearing is available in the office of the King County Hearing Examiner. 1 The parties agreed to divide the issues of this case in such a manner as to require a second report. This first report addresses occurrences prior to service of stop work order. The second report will address allegations of activities following stop work order issuance. E0100105—Michael Richards 2 E0100105—Michael Richards 3 ISSUES/TOPICS ADDRESSED: Sensitive areas Stop work order Wetlands Grading Wetland buffers Clearing SUMMARY: Denies appeal from stop work order regarding clearing and filling within protected sensitive areas (wetlands) and associated buffer areas. FINDINGS: 1. Stop work order served. On February 3, 2001 the Department of Development and Environmental Services (“Department” or “DDES”), represented by Chris Tiffany, Site Development Specialist, posted a stop work order at 4615 West Lake Sammamish Parkway. The stop work order required all persons on the premises to stop activities related to clearing/excavation or filling without the required grading permit. It further advised that, in order to bring this property into compliance, it would be necessary to “apply for and obtain a grading permit, restore sensitive areas and their buffers.” Since service of the stop work order, DDES claims additional prohibited activities have occurred. Those allegations are not addressed in this report. See footnote no. 1. 2. Appeal filed. Michael Richards (“Appellant”), contract purchaser of the subject property, timely filed appeal from the stop work order. Mr. Richards’ appeal makes the following arguments: a. At the outset of these proceedings, the Appellant contended that the County had not established the property as a legal wetland. However, the Appellant later conceded that at least a small portion of the property, lying along its northernmost boundary, qualifies as wetland. However, the Appellant argues that the wetland was created pursuant to the regulatory exemptions described below. b. The Appellant argues that water flowing south from I-90 and “trapped on the property by the failure of the government to maintain the drainage ditch and the culvert along West Lake Sammamish Parkway,” thereby creating a wetland, is exempt due to language contained in KCC 21A.06.1415 (the code definition of wetland). Specifically, the Appellant argues that, using KCC 21A.06.1415 language, the wetlands at issue do not include artificial features created from non-wetland areas including “wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of the road, street or highway.” c. The Appellant argues further that due to “limited clearing of the property continued annually to permit fruit to be harvested from the fruit trees,” the clearing activity at issue in this review is exempt from a grading permit requirements pursuant to KCC 16.82.050.A.17 and KCC 21A.24.050.B.2. d. Finally, based upon the circumstances of the contract seller, Loretta Lewis, the Appellant asks for equitable relief. E0100105—Michael Richards 4 Appellant Richards is a landscape professional and performed or caused to be performed the work at issue in this review. 3. Wetland characteristics. The Appellant does not disagree with the Department’s determination that a wetland exists along the northern boundary of the subject property. However, the Appellant takes a rather restrictive view of the extent of wetlands. Neither the Appellant nor the Department offer evidence of specific wetland boundaries. A wetland delineation study, by which such boundaries are determined, has not been conducted. However, the hearing record contains considerable evidence of a wetland comprising the northern portion of the subject property. A King County Tax Assessor’s map of the area (exhibit no. 7) shows the wetland boundary extending southward from West Lake Sammamish Parkway Southeast right-of- way 100 to 150 feet.2 The general boundaries of the wetland depicted in the Tax Assessor’s map roughly correspond to the “upland” and “lowland” areas of the property that can be seen in the photographic exhibits of record (see for instance, exhibit nos. 5-6, 5-11 and, particularly, exhibit no. 18-26). The photographic evidence also shows a substantial presence of wetland obligate and wetland facultative plants generally within that area: horsetail, red alder, dogwood, skunk cabbage, Oregon ash, salmonberry, willow, and sedge. Exhibit nos. 10 and 5; testimony, Hanson and Douglas. Site inspections conducted by DDES staff (Tiffany; Douglas) confirmed the presence of all wetland indicators required by Washington State and Federal Wetland Identification systems; that is, hydric soils, hydrophytic vegetation and water inundation or saturation (even if only seasonal). Gleyed, mottled, and dark rich organic soils are present in the area generally described as the wetland area identified in the tax assessor map. The dark, rich organic soils at those locations where sample holes were dug on the property were at least 12 inches deep. The DDES staff, educated and trained in wetland assessment, testifies that the depth of these dark rich organic soils means that the wetlands have been present for a very long time – many decades or even longer. Even with intentional composting, such depths of organic soil will not be achieved in the short run. Nor will inundation due to a plugged street culvert for a decade or two create such depths of hydric soils. Only two of the three indicators are required to establish the presence of a wetland. The presence of hydric soils and hydrophytic vegetation as described in this finding thus far, certainly accomplishes that. The saturated soils are certainly present, a fact that is not disputed in this record. There is considerable disagreement, however, regarding how the water got there. See finding no. 4, following. Mrs. Lewis testified that her husband did not plant crops in the lower portion of the property adjacent to West Lake Sammamish Parkway Southeast because it was “too wet.” Douglas testified that application of organic material in the form of compost would not cause the uniform coloration of the top ten inches of very dark brown soil. Hanson, King County Senior Ecologist and wetlands expert, 2 We are uncertain as to how that boundary delineation was determined. Tax Assessor maps are generally for the purpose of locating properties and features, not for identifying accurate measurements. Typically, the Tax Assessor places wetland boundaries on a property, identifying the general dimensions and area of the wetland, as a basis for reducing taxes for that portion of the property ownership. Neither the Appellant nor the Department researched that aspect of this case, however. Neither the Appellant nor his witness, Mrs. Lewis, knew whether a sensitives areas related tax reduction benefit accrues to this property. E0100105—Michael Richards 5 testified that it would take many years to develop the depth of organic material found. Tiffany testified that the soil characteristics match the description of Norma soil series, a hydric soil. The King County Soil Survey map prepared by the U.S. Department of Agriculture (Soil Conservation Service) indicates that one should expect Norma-type soils on the property, exhibit nos. 28 and 29. 4. Presence of water. The Appellant argues that the water presence results from a (previously) plugged culvert under West Lake Sammamish Parkway Southeast. Once the Appellant unplugged that culvert, he testifies, much of the water drained away. Further, he states, it continues to drain. In addition, the Appellant offers exhibit no. 24 which plots various elevations on the subject property. From this spot elevation survey, the Appellant draws the conclusion that the water somehow climbs up the hillside from the approximate elevation of 100 feet (actually a range from 98.5 feet to 101.67 feet) to 103.5 feet when the culvert is blocked. The Department responds that, “this is not physically possible;” that is, that it defies fundamental laws of physics, that water runs down hill and seeks its own level. The Appellant replies that the stoppage of “branch ditches” created the problem. This argument is based on the notion that the roadside ditch filled with mud and debris which, in turn blocked the ditches on the subject property that drained to the roadside ditch. The hearing record lacks hard corroborative evidence regarding the source of the waters which saturate the northern portion of the subject property. The Appellant argues that the water comes from Interstate 90 due to a broken commitment made by WSDOT when it acquired I-90 right-of-way from Mr. & Mrs. Lewis. The warranty deed granted to WSDOT by Clifford and Loretta Lewis contains the following proviso: As a further consideration the State and/or its agents agree, during the construction of this project, to permanently stop the flow of water into the culvert on the southerly side of the highway. The outfall from said culvert is at or near a point opposite and northerly of highway engineer’s station LL640.20 on the LL line survey of said highway project.